Are the best interests of the child no longer paramount?
By:38 commentsFebruary 3, 2017
Marilyn Stowe writes: In this special guest post Paul Apreda of FNF Both Parents Matter Cymru gives his personal take on the recent review of Practice Direction 12J and the emotive topic of domestic violence claims in divorce proceedings. These views do not represent my own opinion nor the stance of the firm but we do believe in a giving a voice to all respectful views.
Stephen Cobb is a very senior Judge in the Family Court. He is a remarkable man. He recently proposed an effective end to the paramountcy principle – the overarching golden rule in family proceedings that the best interests of the child are paramount. But not content with demolishing the corner stone of the system, it looks as though he may believe the family courts can overrule the will of Parliament too.
These observations stem from Mr Justice Cobb’s review of Practice Direction 12J, which covers the ways in which family courts in England and Wales deal with cases where domestic abuse is a feature. The Practice Direction was reviewed in 2014 but organisations such as Women’s Aid and Rights of Women have continued their criticism of the Courts, insisting that they fail to protect women and children from their male abusers. Domestic Violence and abuse is of course a very serious issue. We understand that Court-appointed support agencies have identified almost 50 per cent of cases as having some allegation of abuse.
Everyone’s favourite Family Law blogger John Bolch stated that the proposals made by Justice Cobb about the way that DV should be treated in family court proceedings will be:
“……displacing the presumption that involvement of both parents in the life of the child concerned will further the child’s welfare where the involvement of a parent in a child’s life would put the child or other parent at risk of suffering harm arising from domestic violence or abuse” (my emphasis)
We know that domestic violence and abuse can include physical, emotional, psychological and also financial abuse. What the draft wording appears to suggest is that if, for example, the mother felt that it would be so traumatic to her that the Court should allow her beautiful child to see ‘that horrible evil swine of a father’ then the Court would need to act to circumvent the will of Parliament set out in statute law – i.e. the presumption that involvement of the other parent will further the child’s welfare, as set out in section 11 of the Children and Families Act 2014.
Clearly it is insufficient to be able to prove that the involvement of the ‘other parent’ would not further the welfare of the child, as the 2014 Act requires. Merely the risk of the mother (sorry, ‘controlling parent’) suffering some form of domestic abuse is sufficient to overturn the provisions of statute. Either the ‘best interests of the child’ are paramount or they aren’t. Which one is it?
In paragraph 4 of his review Mr Justice Cobb tells us that he consulted with Women’s Aid…oh and Rights of Women. He also mentions a number of feminist academics, including Professor Rosemary Hunter – who is currently the academic representative on the Family Justice Council – plus a few others, all of whom are likely to have argued from substantially the same position. Did he consider that perhaps Women’s Aid and Rights of Women are not the best qualified to represent the perspective of male victims of abuse? Did he consult with anyone about the extent to which false and spurious allegations of abuse may be a characteristic of private law proceedings? We can but speculate. The issues around false allegations have been illustrated in an earlier post on Marilyn’s blog here.
In his report The Honourable Mr Justice Cobb mentions that he looked at the Women’s Aid Nineteen Child Homicides report, yet he seems unaware of the 330 Child Homicides report, drawn from a much wider sample of cases that were subject to Serious Case Review from 2009-2015. This suggests that mothers are more likely to be culpable for child deaths than fathers. He also seems unaware of cases such as that of Samira Lupidi who was jailed for life after killing her two children while living in a refuge. According to a report in The Mirror, the Judge at her trial noted:
“Even a week [after the killing] you were telling the prison medical staff that the most important thing was that [her fiancee] was suffering.”
Furthermore he repeats the claim made by Women’s Aid that 39 per cent of women were physically abused by their former partner in the Family Court.
Lucy Reed – Chair of the Transparency Project – has questioned the reliability of the data offered by Women’s Aid. It seems that the figures were produced from a self-selected sample of Women’s Aid service users, amounting to 90 individuals.
Finally another assertion from Women’s Aid is also taken on board by Mr Justice Cobb. The much repeated problem of men continuing their abuse of women by making applications to the Family Court. Let’s just analyse that for a moment. How many applications are deemed to be an abuse in this way? Ah, we have no figures for that. Also, what criteria will be applied to determine whether these men’s applications are motivated by a desire to control, coerce or harass? Again – no information on this. What we end up with is the following in the draft Practice Direction that Courts must:
“…ensure that the court process is not used as a means to perpetuate coercion, control or harassment by an abusive parent.”
Men who turn to the Family Court as their last hope of ever seeing their children again are now ‘presumed’ to be perpetrators of abuse! Clearly the existing provisions of the Children Act 1989 (section 91, paragraph 14) appear wholly inadequate to prevent these wicked men from wasting their £215 application fee and presumably tens of thousands of pounds worth of legal fees simply to continue this terrible pattern of abuse in which they have the absolute cheek to expect to maintain a relationship with their own children.
Key questions then that remain unanswered include:
Is the Paramountcy Principle now subordinate to the ‘risk of harm’ to the controlling parent?
Can a Practice Direction overturn statute law?
We shall be waiting for clarification.
Photo by quinn.anya via Flickr under a a Creative Commons licence
February 3, 2017